Final Order 1

Order Details: Other
Pdf Text: 24.01.2020
SU 1577/18
NM
3286/19
CORAM: H. H. J. SHRI.M.T.ASIM (CR. NO. 02)
Plaintiff present.
Adv. U.V. Singh for plaintiff present.
Av. Miss Dhumal for defendant Present.
Defendant present.
KB
LO
Order passed below Notice of Motion No.3286 of 2019
along with delay condonation application dated 23.01.2020.
Perused notice of motion, affidavit in support of it, reply of
defendant, rejoinder of plaintiff, delay condonation application,
say on it and roznama of proceeding. Heard respective counsel
for parties.
Notice of motion is taken out by the plaintiff to set aside
order 18.06.2019 whereby notice of motion No.2515 of 2018
was dismissed in default and to restore the same on the file of
this Court.
It is the contention of plaintiff that on 10.04.2019, plaintiff
went to his native place for treatment of his ailing wife, and his
advocate was in Thane Court to attend an urgent matter and so
they could not attend above matter on that date. More so, on
18.06.2019, plaintiff was at his native place for treatment of his
wife, and his advocate was in Court Room No.4. When his
advocate reached to this Court, notice of motion was dismissed
in default but date was not given and when advocate for
plaintiff requested to the Court that he is ready to argue said
notice of motion, the Court asked him to take appropriate
proceeding for restoration of notice of motion No.2515 of 2018.
However, plaintiff was not available so same could not be taken
out on that date.
In delay condonation application it is contended that
notice of motion was affirmed on 24.06.2019 but matter was
adjourned to 26.08.2019 for draft issues. So, on that date,
leave was sought to register draft notice of motion. In the facts
of matter delay was neither deliberate nor intentional and
plaintiff prayed to condone delay caused in taking out present
notice of motion and also prayed to allow notice of motion in
above terms.
Defendant filed reply to notice of motion and opposed it
on the count that reasons given are not satisfactory and
justifiable for absence of plaintiff when notice of motion
No.2515 of 2018 was called for hearing. More so, plaintiff has
not filed documentary evidence in support of notice of motion
pertaining to the reasons assigned in it. Accordingly, she
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prayed for dismissal of notice of motion.
In reply to application for condonation of delay it is
contended that plaintiff is deliberately causing delay and
strongly opposed the application.
Plaintiff filed rejoinder to reply of defendant and reiterated
contents in affidavit in support of notice of motion and annexed
copy of medical papers of his wife and copy of certain pages of
advocate's diary and prayed to allow notice of motion.
On perusal of copy of OPD Card it is clear that treatment
of wife of plaintiff was going on in Govind Ballabh Pant
Institute, New Delhi. No doubt, plaintiff has not filed document
of that particular date but there is no reason to disbelieve
statement of plaintiff on solemn affirmation that he was taking
care of his ailing wife at the relevant time. Roznama dated
18.06.2019 also shows that later on Adv. U. V. Singh for
plaintiff appeared which indicate that when the matter was
called advocate for plaintiff was absent. Consequently, notice
of motion No.2515 of 2018 was dismissed in default.
Appearance of advocate for plaintiff on same date does not
show that advocate for plaintiff was not intending to argue the
matter on that date. In the facts of matter I am of the view that
reasons assigned by the plaintiff are sufficient to set aside
impugned order. So far as delay caused is concerned it is clear
that affidavit in support of present notice of motion was
affirmed by the plaintiff on 24.06.2019. However, date was
posted to 26.08.2019 so it seems that on that date present
notice of motion was taken out by the plaintiff. Aforesaid act
cannot be said to be deliberate or intentional. Although there is
some negligence on the part of plaintiff in taking out present
notice of motion but in order to do substantial justice I am
inclined to condone delay caused in taking out present notice of
motion. In light of discussion made above delay condonation
application and present notice of motion deserves to be allowed
subject to imposition of certain costs upon plaintiff. Hence,
pass following order.
ORDER
1. Delay condonation application and Notice of Motion
No.3286 of 2019 are allowed. Notice of Motion is made
absolute in terms of prayer clause (a) subject to payment of
costs of Rs.1000/ (Rupees One Thousand only) to defendant
within period of two weeks from the date of this order.
Plaintiff is at liberty to deposit the costs payable to the
defendant in the Court.
2. After payment of costs, Notice of Motion No.2515 of 2018
be restored on the file of this Court at its original number and
stage.
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3. Accordingly, delay condonation application and notice of
motion stands disposed off.
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Costs paid by plaintiff to adv. for defendant who accepted costs
on behalf of defendant.
Adjourned for direction 18.02.2020.
Judge
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